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Oracle v. Google - Copyright Summary Judgment Hearing Tomorrow - UPDATE
Wednesday, September 14 2011 @ 11:00 AM EDT

The hearing on Google's Motion for Summary Judgment on Oracle's copyright claim is on for tomorrow, September 15, although the time of the hearing has been moved up to 8:00 a.m. The parties clearly intend to put on a bit of a show given all of the equipment they have requested. 422 [PDF]

Oracle is also making a last minute request to enter excerpts from the transcript of Dr. Astrachan's deposition 420 [PDF], since that deposition was not taken until after the deadline for filings pertinent to the hearing. Expect that request to be granted.

***********

UPDATE

Got that one wrong. Google quickly filed an objection 424 [PDF] to the Oracle request with respect to the Astrachan deposition. Google argues its too late and, more importantly, irrelevant to the issue up for summary judgment.

Judge Alsup has agreed that it is too late for it to be considered in the summary judgment proceeding. 425 [PDF]

***************

Docket

417 – Filed and Effective: 09/12/2011
CLERKS NOTICE
Document Text: CLERKS NOTICE Rescheduling Hearing. Motion for Summary Judgment set for 9/15/2011 8:00 AM. (dt, COURT STAFF) (Filed on 9/12/2011) (Entered: 09/12/2011)

418 – Filed and Effective: 09/12/2011
LETTER BRIEF
Document Text: Letter Brief from Robert Van Nest filed byGoogle Inc.. (Van Nest, Robert) (Filed on 9/12/2011) (Entered: 09/12/2011)

419 – Filed and Effective: 09/12/2011
MOTION
Document Text: Administrative Motion to File Under Seal RE: REQUEST FOR LEAVE TO FILE PORTIONS OF DEPOSITION TRANSCRIPT filed by Oracle America, Inc.. (Swoopes, Roman) (Filed on 9/12/2011) (Entered: 09/12/2011)

420 – Filed and Effective: 09/12/2011
LETTER
Document Text: Letter from Michael A. Jacobs REQUEST FOR LEAVE TO FILE PORTIONS OF DEPOSITION TRANSCRIPT. (Swoopes, Roman) (Filed on 9/12/2011) (Entered: 09/12/2011)

421 – Filed and Effective: 09/13/2011
MOTION
Document Text: MOTION Request and [Proposed] Order Regarding Courtroom Equipment for September 15, 2011 Summary Judgment Hearing re 260 MOTION for Summary Judgment on Count VIII of Plaintiff Oracle America's Amended Complaint filed by Oracle America, Inc.. Motion Hearing set for 9/15/2011 08:00 AM in Courtroom 8, 19th Floor, San Francisco before Hon. William Alsup. Responses due by 8/19/2011. Replies due by 8/26/2011. (Swoopes, Roman) (Filed on 9/13/2011) (Entered: 09/13/2011)

422 – Filed and Effective: 09/13/2011
ORDER
Document Text: ORDER GRANTING REQUEST TO USE EQUIPMENT AT SEPTEMBER 15 HEARING, Order by Hon. William Alsup granting 421 Motion to Use Equipment.(whalc1, COURT STAFF) (Filed on 9/13/2011) (Entered: 09/13/2011)

423 - Filed & Entered: 09/13/2011
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by Oracle America, Inc. (Swoopes, Roman) (Filed on 9/13/2011)

424 - Filed & Entered: 09/13/2011
Letter
Docket Text: Letter from Michael S. Kwun in Opposition to Oracle's Request for Leave to File Portions of Deposition Transcript. (Kwun, Michael) (Filed on 9/13/2011)

425 - Filed & Entered: 09/14/2011
Order
Docket Text: ORDER DENYING PRECIS REQUESTS REGARDING SUPPLEMENTAL FILINGS re [420] Letter filed by Oracle America, Inc., [424] Letter filed by Google Inc.. Signed by Judge Alsup on September 14, 2011. (whalc1, COURT STAFF) (Filed on 9/14/2011)


*****************

Documents

417

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE, INC.,
Defendant.

No. C 10-03561 WHA

CLERK’S NOTICE
RESCHEDULING HEARING

(Plaintiff shall serve a copy of this notice on any party in the above-entitled action not appearing on the Notice of Electronic Filing or Other Case Activity and/or the attached Certificate of Service.)

YOU ARE NOTIFIED THAT the Motion for Summary Judgment previously set for September 15, 2011 at 2:00 p.m. has been rescheduled for September 15, 2011 at 8 a.m., before the Honorable William Alsup. Please report to Courtroom 8, on the 19th Floor, United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA 94102

Dated: September 12, 2011

FOR THE COURT,
Richard W. Wieking, Clerk
By:_____________________
Dawn Toland
Courtroom Deputy to the
Honorable William Alsup


420

[Morrison Foerster letterhead]

September 12, 2011

The Honorable William H. Alsup
Judge of the United States District Court
Northern District of California
450 Golden Gate Ave.,
Courtroom 8, 19th Floor
San Francisco, CA 94102

Re: Oracle America, Inc. v. Google, Inc., Case No. 3:10-cv-03561-WHA

Dear Judge Alsup:

Oracle respectfully requests leave to file a motion pursuant to Civil L.R. 7-3(d) to supplement its evidence in support of Oracle’s Opposition to Google’s Motion for Summary Judgment on Copyright (Dkt. No. 339) with excerpts from the deposition transcript of Google’s copyright expert, Dr. Owen Astrachan, taken September 9, 2011. Alternatively, Oracle requests leave to simply file the above transcript excerpts. The parties’ scheduled depositions of their respective copyright experts took place after briefs on the summary judgment motion were due, so Oracle could not have submitted this evidence earlier.

Google’s motion contends that designing APIs is “the very antithesis of creative expression.” (Google Reply Brief at 4:2-3). At his deposition, however, Dr. Astrachan acknowledged that designing APIs requires skill and creativity:

[REDACTED]

[REDACTED]

The Honorable William H. Alsup
September 12, 2011
Page Two

[REDACTED]

[REDACTED]

[REDACTED]

Astrachan Dep. Tr. at 128:23-129:14. See also id. at 223:5-25 (acknowledging that designing the APIs at issue [REDACTED] and that the design process involves [REDACTED].

Dr. Astrachan further acknowledged the skill writing good APIs requires:

[REDACTED]
Id. at 126:21-127:5. Dr. Astrachan added: [REDACTED] Id. at 128:9-13.

Dr. Astrachan however, discounts this creativity because he contends that despite their [REDACTED] between these

The Honorable William H. Alsup
September 12, 2011
Page Three

elements, the APIs are simply [REDACTED] Id. at 241:18-242:21. He also tried to discount this creativity at his deposition, by claiming, contrary to the definitions for “API” he provided in his expert report that the APIs are purely abstract and are not expressed in either the specifications of the software. Compare id. with Astrachan Astrachan Decl. Ex. 1 at ¶ 24 n.1 (citing Newton’s Telecom Dictionary’s definition of an API as “[s]oftware that an application program uses to request and carry out lower-level services performed by the computer’s . . . operating system.”)

Dr. Astrachan’s testimony also sheds light on the issue of compatibility that Google has raised with the Court. When asked whether Google could have written its own APIs for the 37 packages at issue in this case, Dr. Astrachan replied: [REDACTED] Id. 253:2-4. The design goals to which Dr. Astrachan referred were [REDACTED] Id. 251:21-24.

So that the Court may better consider the above, Oracle requests leave to file excerpts from Dr. Astrachan’s deposition transcript in support of its opposition to Google’s motion.

Respectfully submitted,
/s/ Michael A. Jacobs
Michael A. Jacobs

cc: Counsel for Google, Inc.


422

NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

ORACLE AMERICA, INC.
Plaintiff,
v.
GOOGLE INC.
Defendant.

Case No. CV 10-03561 WHA

REQUEST AND ORDER REGARDING COURTROOM EQUIPMENT FOR
SEPTEMBER 15, 2011 SUMMARY JUDGMENT HEARING

Date: September 15, 2011
Time: 8:00 a.m.
Dept.: Courtroom 8, 19th Floor
Judge: Honorable William H. Alsup

Plaintiff Oracle America, Inc. (“Oracle”) respectfully requests permission, pursuant to General Order No. 58, for the parties to bring the following equipment into the courthouse, and to possess and use that equipment in Courtroom 8 during the Copyright Summary Judgment Motion Hearing, scheduled for Thursday, September 15, 2011, at 8:00 a.m.

The specific devices are as follows:

1. 2 50” Plasma Screens

2. 2 Dual Post Stands

3. 1 data projector

4. 1 7.5’x10’ projector screen

5. 1 visual presenter

6. 1 video switch box

7. 2 cart / stands

8. 4 laptop computers

9. cables, peripherals, and power cords for the foregoing equipment

The parties are coordinating their efforts and will share the presentation equipment.

Oracle further requests the Court’s permission for the parties to set up their respective electronic devices in the courtroom on Wednesday, September 14, 2011, at 4:00 p.m., or at such time the Court may specify, to facilitate the timely and orderly conduct of the hearing.

1

Dated: September 13, 2011

MICHAEL A. JACOBS
MARC DAVID PETERS
DANIEL P. MUINO
MORRISON & FOERSTER LLP

By: /s/ Roman A. Swoopes
Roman A. Swoopes

Attorneys for Plaintiff
ORACLE AMERICA, INC.

ORDER

For good cause shown, the foregoing requests are GRANTED.

IT IS SO ORDERED.

DATED: September 13, 2011

/s/ William H. Alsup
THE HONORABLE WILLIAM H. ALSUP
United States District Judge

2


424

[Keker & Van Nest letterhead]

September 13, 2011

Honorable William Alsup
U. S. District Court
Northern District of California
Courtroom 8 - 19th Floor
450 Golden Gate Avenue
San Francisco, CA 94102

Re: Oracle America, Inc. v. Google Inc. U. S. District Court Case No.: 3:10-cv-03561 WHA

Dear Judge Alsup:

Google opposes Oracle’s September 12, 2011 request to file post-reply evidence related to Google’s motion for summary judgment on Oracle’s copyright claim (Dkt. 420), and asks that the Court strike Oracle’s précis from the record.

Oracle’s précis violates Civ. L.R. 7-3(d), which prohibits the filing of “additional memoranda, papers or letters” without leave of court after the filing of a reply brief, with two exceptions that Oracle does not claim apply here. The vast majority of Oracle’s précis quotes from evidence that is not before the Court, and argues its relevance to the summary judgment motion. That is not a request for leave to file “additional memoranda, papers or letters”—it is the unauthorized filing of an additional memorandum. Indeed, Oracle candidly explains that it seeks leave to file excerpts from the transcript of Prof. Astrachan’s deposition “[s]o that the Court may better consider” the arguments in its précis. (Jacobs Ltr. at 3.) That is, the purpose of the filing for which Oracle seeks leave is to provide evidence that relates to arguments in its précis—arguments Oracle filed without leave.

Honorable William Alsup
September 13, 2011
Page 2

Moreover, the evidence Oracle seeks to place before the Court is irrelevant or cumulative. For example, Oracle points to testimony about whether the process of designing APIs involves creativity. But the primary question before the Court is whether the APIs themselves and their elements are protectable—i.e. copyrightable—expression, not whether the process of creating them was “creative.” Oracle also re-argues a point from its opposition—that designing APIs requires “skill.” This is irrelevant, because “skill” is not the measure of copyrightability, any more than sweat of the brow is. Oracle also appears to argue that its APIs are not abstractions, although its own expert opined that APIs “impose a level of abstraction . . . on top of the underlying software platform.” Mitchell Decl., Ex. 2 ¶ 23. Finally, Oracle points to testimony from Prof. Astrachan regarding interoperability that is consistent with the positions Google has taken, and that the parties have already briefed.

The précis is an unauthorized sur-reply, filed in violation of Civ. L.R. 7-3(d), and raises no new, relevant issues. The Court should not grant Oracle leave to file additional evidence, and should strike the précis from the record. If the Court does not strike the précis, Google requests leave to file a three page letter brief in response to the arguments improperly made in the précis.

Respectfully submitted,

s/Michael S. Kwun

MICHAEL S. KWUN

cc: Counsel of Record, via ECF system


425

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

ORACLE AMERICA, INC.,
Plaintiff,
v.
GOOGLE INC.,
Defendant.

No. C 10-03561 WHA

ORDER DENYING PRÉCIS REQUESTS REGARDING SUPPLEMENTAL FILINGS

Depositions of the parties’ copyright experts took place after defendant’s motion for summary judgment on the copyright claim was fully briefed. Oracle America, Inc. now seeks leave to supplement its opposition with excerpts from the deposition of defendant’s expert (Dkt. No. 420). Google Inc. opposes (Dkt. No. 424). The request is DENIED. Good cause has not been shown for expanding the scope of the summary judgment record at this time.

In opposing Oracle’s request, Google requests that Oracle’s précis be stricken or that Google be allowed to file a reply to the substantive arguments therein. These requests are also DENIED. Oracle’s précis is not part of the summary judgment record, and its contents will not be considered in deciding that motion. Accordingly, no such measures are necessary.

IT IS SO ORDERED.

Dated: September 14, 2011.

/s/William Alsup
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE



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